Shelton v. Ux

• Decision Date: 11 January 1908
• Docket Number: 14,509
• Parties: FLORA SHELTON v. L. BORNT et ux
• Court: Kansas Supreme Court

93 P. 341

77 Kan. 1

FLORA SHELTON v. L. BORNT et ux

No. 14,509

Supreme Court of Kansas

January 11, 1908

Decided January, 1908.

Error from Saline district court; ROLLIN R. REES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DAMAGES--Trespass--Mental Suffering--Immaterial Error. In an action for damages for unlawfully removing plaintiff's household goods from a dwelling-house into the street, where it is admitted on the trial that under the pleadings plaintiff is not entitled to recover any damages for injury to her property, and it appears that she suffered no physical injury of any kind, and the only claim for damages is based upon mental suffering fright, humiliation and disgrace occasioned by the acts of defendant in removing the goods, the judgment will not be reversed for alleged error in sustaining a demurrer to the evidence, since it appears that plaintiff was only entitled to nominal damages.

C. M. Holmquist, and T. F. Garver, for plaintiff in error.

Z. C. Millikin, for defendants in error.

PORTER, J., JOHNSTON, C. J., BURCH, MASON, SMITH, GRAVES, BENSON, JJ., concurring. PORTER, J. (dissenting)

OPINION

PORTER, J.:

Flora Shelton brought this action to recover damages for the unlawful acts of the defendants in forceably depriving her of the possession of two rooms in a dwelling-house and in removing therefrom her household goods. The petition set forth that on January 9, 1902, she was in the lawful possession of two rooms in a dwelling-house in Salina; that on that date the defendants, with wanton and malicious intent to injure, damage and humiliate the plaintiff, unlawfully broke into, entered and took possession of the rooms and removed therefrom plaintiff's household goods and pitched them into the street. She sued for $ 1000 damages.

The case was tried to the court and a jury. At the conclusion of plaintiff's testimony the court sustained a demurrer to the evidence, and this is alleged as error. The evidence disclosed the following facts: The defendants are husband and wife. The dwelling-house in question belonged to the wife, but the husband had some care and control over it, made repairs, and served. notices to tenants, as agent. Defendants lived in another house on an adjoining lot. In August, 1901, they rented the dwelling-house to L. S. Conner, who was to have possession until the following May. On November 30, 1901, Conner rented two of the rooms to plaintiff, and she paid him six dollars for the first month. He gave her a receipt and also a written statement that she was to have the privilege of occupying the rooms on the same terms until March 1, 1902. About January 1 Conner arranged to move to Missouri. He surrendered his lease and served the following written notice upon plaintiff:

"SALINA, KAN., January 4, 1902.

"Mrs. Shelton, you are hereby notified to vacate the two rooms you now occupy on or before January 7, 1902. Reason why, I no longer occupy building.

"L. BORNT, Agent.

L. S. CONNER, Renter."

She told Conner she would get out as soon as she could find rooms. On January 7 L. Bornt, as agent, served her with another written notice to leave.

On the 9th day of January plaintiff had arranged to vacate the premises and had secured another house. She was down town for the purpose of procuring a dray to remove her goods. During her absence Mr. Bornt took some men and entered the rooms and began to remove her household goods and place them in the street. When she returned and found the men removing her goods in this manner she was frightened and went down town and complained to the county attorney and to the mayor. She returned to the house and found both defendants there, and inquired if she could go in and get some of her property, which was missing. The husband, in the presence of the wife, informed plaintiff that the house was locked to her. The wife said, "You had better let her in." She secured the rest of her goods, and soon afterward they were loaded upon a dray and taken to her new quarters. The evidence showed that the weather was clear and that the damages, if any, to the property were trifling. No act of assault or violence was offered to plaintiff or any member of her family. In fact, there is no allegation in the petition of any damages to plaintiff's person or property. During the trial the following admission was made by plaintiff, as shown by the record:

"It was conceded by the plaintiff on the trial of this cause that her amended petition did not entitle her to any recovery of damage on account of the injury, if any, to her property, and that she based her right of recovery upon alleged trespass upon her personal rights and not upon her property rights."

The purpose or object of the foregoing admission on the part of plaintiff's attorney is inexplicable except upon the theory that the petition failed to allege that the person or property of plaintiff was injured. In view of the admission that the property sustained no damage, and the fact that the evidence shows that plaintiff suffered no physical injury, there remained nothing upon which to base a claim of damages except mental suffering caused by the humiliation and disgrace which would naturally follow from having one's household goods emptied into the street. The rule adopted by this court years ago, and followed in numerous cases, denies recovery for mental pain, anguish or humiliation except when accompanied by some physical injury to the person. (City of Salina v. Trosper, 27 Kan. 544; West v. Telegraph Co., 39 Kan. 93, 17 P. 807, 7 Am. St. Rep. 530; A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 P. 453; Railroad Co. v. Dalton, 65 Kan. 661, 70 P. 645; Manser v. Collins, 69 Kan. 290, 76 P. 851.) It therefore becomes unnecessary to look further into the record for alleged error, because, in case we were to determine that the court erred in sustaining the demurrer, the judgment must nevertheless be affirmed on the ground that nothing but nominal damages were shown. The judgment is affirmed.

JOHNSTON, C. J., BURCH, MASON, SMITH, GRAVES, BENSON, JJ., concurring.

DISSENT BY: PORTER

DISSENT

PORTER, J. (dissenting): I am unable to concur in the doctrine that damages may never be recovered for mental suffering except as an incident to some physical injury or damage to the person. This is the general rule as applied to cases of negligence, for two sufficient reasons: (1) Such damages are regarded as too remote to justify recovery in cases of negligence, because they could not reasonably have been anticipated to result from the accidental or unusual combination of circumstances. (2) The law looks with disfavor upon them because the proof of their existence lies often wholly within the breast of the one who claims to have suffered, and their allowance would open the door to fraud.

I have no quarrel with the rule as applied to cases arising out of ordinary negligence, but the reasons suggested for the rule have no application to a case of wilful tort. The authorities quite generally agree that in a case like the present the plaintiff would be entitled to recover for disgrace and humiliation suffered by having her family and household goods put into the street, provided she first show that some actual damage was sustained by her. (Moyer et al. v. Gordon, 113 Ind. 282, 288, 14 N.E. 476; Kimball v. Holmes, 60 N.H. 163.) And the courts which refuse to uphold damages for mental suffering unaccompanied by injury to the person allow such damages when very slight or trivial injury to the person is shown.

In my opinion the rule has no application to a case where the defendant, taking the law into his...